GAR Helps Counter Legal Pitfalls of Cancer Screening, Diagnosis

WASHINGTON--Put GAR in your patients' records. It can prove extremelyuseful should you find yourself being sued for medical malpractice,Marvin A. Dewar, MD, JD, said at the National Conference on Preventionand Early Detection, sponsored by the American Cancer Society.

GAR is an acronym for "general information, alternatives,risks"--three key points every physicians needs to discusswith patients before cancer screening or diagnosis,

Dr. Dewar, director, Family Practice Residency Program, the Universityof Florida College of Medicine, Gainesville, said that malpracticecases alleging that a physician delayed diagnosis or failed todiagnose a cancer continue to increase.

In a 1991 Florida study, Dr. Dewar and his colleagues found thatin cases involving primary care physicians, failure to diagnosecancer was the most common allegation, representing 16% of allpaid claims, at an average cost of $160,352. Failure to diagnosebreast cancer ranked first, followed by lung, prostate, and coloncancer.

One element in defending against such lawsuits is having and documentinga good informed consent process. And thus, he recommends rememberingGAR.

"Informed consent is a conversation that you as providershave with patients," Dr. Dewar said. "It is the understanding,the meeting of the minds between the patient and the provider.The documentation of the informed consent is not informed consent,but it is important from the legal protection standpoint."

He urged that physicians give each patient general information,explain the alternatives, describe the risks, and note this inthe patient's record.

"A plastic surgeon or a breast surgeon will dictate voluminousand detailed informed consent," Dr. Dewar said. "Atthe cancer detection level, you and I often don't have time todo that. Nonetheless, documentation is important, and I suggestthat you do it."

Impact of Practice Guidelines

Clinical practice guidelines have been the subject of much debateabout whether they increase the risk of malpractice litigationor protect providers and decrease the threat. In fact, such guidelinescan prove to be a mixed blessing. The most helpful practice guidelinesfor physicians, Dr. Dewar commented, are those that are widelyaccepted by the medical community.

In areas where guidelines diverge or conflict, practice recommendations"are not going to carry very much legal weight," hesaid, "because they will be just as confusing to the juryas they are to many providers and patients."

More relevant to malpractice suits are guidelines developed specificallyto address situations that commonly lead to litigation. But mostimportant, practice guidelines "have to be straightforwardand readily interpreted in the litigation setting," Dr. Dewarsaid.

For example, he said, the American Cancer Society's guidelinesfor screening intervals are very simple, clear, and easily understood."They will have more weight in a litigation setting thanwill more lengthy and confusing guidelines."

Defining Medical Negligence

Legally, to succeed in winning compensation in a malpractice suit,a patient must prove medical negligence, and this essentiallyconsists of four points.

First, an obligation must exist that the provider give a certainlevel of care; second, that duty must be breached; third, thatbreach must cause harm to the patient; and fourth, that harm mustinflict legally recognizable damage, such as loss of wages, onthe patient.

Originally, local medical standards served as the criteria fordetermining a physician's standard of care; now physicians facea national standard. "Although the resources may be different,the standard of care that you provide with those resources isgoing to be the same in Wisconsin as it is in Atlanta," Dr.Dewar commented.

However, physicians do have what attorneys call the "respectableminority rule" on their side. This is especially importantin such areas as prostate screening that are marked by scientificcontroversy and varying recommendations and practice guidelines.

"If the care decision that you go by is supported by whatwe call a respectable minority of the medical profession, then,in fact, you have not breached the duty of care," Dr. Dewarsaid. "So in an area where there is tremendous scientificdebate, the clinician is not going to be put on the hook, theoretically,for following one of the viable options."

However, where one practices can make a difference in the criteriafor proving harm, legally referred to as "causation."Most states use "the 51% rule," Dr. Dewar said, whichmeans that "the breach of duty had to be the probable causeof the injury, with a 51% chance that the failure to do something,or the doing of something that shouldn't have been done, led tothe injury."

A minority of states, including Illinois and West Virginia, usea more stringent rule, such as the physician's action resultingin "some loss of chance of a better outcome," and theserules work more to the plaintiff's advantage," he said.

The large majority of medical malpractice suits never stay thefull legal course from accusation to jury verdict, he said. Nationally,73% of medical malpractice cases end in settlement, with another10% dismissed by the courts.

One of physicians' greatest malpractice fears--the awarding ofpunitive damages--is actually quite rare in the health-care setting,Dr. Dewar said, since they require proof of willful and wantonnegligent conduct.